The recent judgment in State Bank of India & Others v Dr Vijay Mallya & Others [2018] EWHC 1084 (Comm) considered issues regarding the registration and enforcement of foreign judgments in England & Wales, including the approach to be taken when interpreting legislation and the meaning of "pending appeal" in deciding whether to stay enforcement following registration.

It also covered how various factors are to be assessed when considering whether to grant or continue a freezing order, including the risk of dissipation, delay on the part of the claimant in making the application and material non-disclosure, which we deal with in a separate insight.

TLT acted for the successful consortium of 13 Indian financial institutions (the Banks).

Background

The first defendant, Dr Mallya, is a prominent Indian businessman. He is the co-owner of the Force India Formula One team and former chairman of United Breweries Group.

In 2013, the Banks initiated proceedings in the Debt Recovery Tribunal (DRT) in India in respect of debt owed by Kingfisher Airlines, which Dr Mallya had personally guaranteed. Judgment was granted in January 2017 (the DRT Judgment). As of November 2017, the sum owed including interest totalled c£1.145bn.

In November 2017, the Banks applied to the High Court for registration of the DRT Judgment in England and Wales, which was granted at an ex parte hearing (the Registration Order). The Banks also successfully applied for a worldwide freezing order against Dr Mallya's assets (the WFO).

Dr Mallya subsequently applied to have the Registration Order set aside, alternatively for enforcement of it to be stayed pending appeals in India. He also applied to discharge the WFO on the grounds of delay, there being no serious risk of dissipation of his assets, and material non-disclosure.

Following a hearing in April, both of Dr Mallya's applications were dismissed, with the effect that the Registration Order became immediately enforceable and the WFO remains in place.

Registration criteria

The Registration Order was made under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act). The 1933 Act applies to India by virtue of the Reciprocal Enforcement of Judgments (India) Order 1958 (the 1958 Order).

Under paragraph 4 of the 1958 Order, a "court" (including tribunals) for the purposes of the 1933 Act includes:

"all other Courts whose civil jurisdiction is subject to no pecuniary limit providing that the Judgment sought to be registered… is sealed with a seal showing that the jurisdiction of the Courts is subject to no pecuniary limit".

Whilst accepting the DRT had no (upper) pecuniary limit, Dr Mallya argued that the DRT Judgment itself did not satisfy the section because the seal did not itself show that there was no pecuniary limit to the DRT's jurisdiction, nor did the DRT Judgment say in clear words that there was no pecuniary limit.

The Banks' case was that it was implicit from the wording of the DRT Judgment and the seal affixed to it that the DRT's jurisdiction was not limited. They also relied on a letter from the Presiding Officer of the DRT addressed to the English High Court, bearing the seal of the DRT, which confirmed the DRT was not subject to a pecuniary limit. Dr Mallya argued that the letter was of no assistance as it was not part of the judgment itself and there were procedural defects in the manner it had been issued in India.

Although agreeing that a purposive approach to the interpretation of the 1933 Act and 1958 Order was required, the parties differed on the outcome of that approach. The starting point was to consider the literal meaning of the text before considering the context of the surrounding provisions and any clear discernible legislative purpose.

Dr Mallya's argument that the legislation was deliberately precise to enable the court to immediately and easily decide whether the relevant court qualified was rejected. Instead, the court held that the clear purpose of the 1958 Order was to extend the reciprocal enforcement regime to appropriate Indian courts and it would be wrong to take an unduly narrow or technical approach. Accordingly, wording in the DRT Judgment (in particular that dismissing a challenge to its jurisdiction while confirming the DRT had exclusive jurisdiction over the Indian High Court to hear the claim by the Banks) and the letter from the DRT Presiding Office provided sufficient evidence to satisfy the requirements of the 1958 Order.

Was there a pending appeal?

Dr Mallya asked the court to exercise its discretion under section 5 of the 1933 Act to stay enforcement of the Registration Order on the basis that the DRT Judgment was being appealed in India.

An appeal had been lodged over 200 days after the relevant deadline to do so had passed, together with an application for condonation of that delay. The appeal was subsequently struck out due to numerous unremedied defects. Dr Mallya issued (also out of time) an application to restore the appeal, together with a further application for condonation of that delay. The appeal court ordered Dr Mallya to deposit half of the judgment sum as a pre-condition to considering the restoration application.

The English court held that, on the basis Dr Mallya had to undertake various steps to before his appeal could be restored, there was no active or pending appeal. Nor was there any entitlement to appeal as the prescribed time for appealing had elapsed and no permission to appeal had been granted (following the Scottish case of Gillian Walton [2012] CSIH 53).

The court also rejected Dr Mallya's argument that prior, ongoing proceedings issued in the Bombay High Court challenging the validity of the personal guarantee amounted to an appeal for the purposes of section 5 of the 1933 Act. They were separate proceedings and in any event there was no compelling evidence that Dr Mallya would succeed.

Comment 

Foreign judgment creditors should welcome the willingness of the English court to give effect to reciprocal enforcement arrangements. It is quite right that substance should take precedence over form, especially where a challenge to registration of a judgment is based on very technical, administrative points which are unlikely to be known by the foreign court at the time it issued the judgment.

The guidance as to what constitutes a "pending appeal" and "entitlement to appeal" is applicable not just to the 1933 Act but more widely whenever a court is exercising its discretion on staying enforcement. This is particularly relevant where a judgment debtor is using taking several points in an attempt to frustrate enforcement.

Finally, this case is also noteworthy as it is the first known reported instance of a judgment of the DRT being registered in the English courts. This is significant because it is mandatory for financial institutions in India to bring debt claims in the DRT. This decision will make it far easier to register such judgments with the English High Court to enable enforcement against any assets in this jurisdiction in the future.